Affirmative Action May Return To Supreme Court For Final Judgment

A high-stakes affirmative action case may soon return to the Supreme Court for a final judgment after a federal appeals court upheld the University of Texas's diversity-seeking admissions program on Tuesday.

A divided three-judge panel on the Fifth Circuit Court of Appeals validated the university's admissions program to enhance diversity. The case implicates the legal underpinnings of the use of race as a factor in admissions, which the Supreme Court crafted in 2003 with a 5-4 majority led by Justice Sandra Day O'Connor, who has since been replaced by the more conservative Justice Samuel Alito.

Rick Hasen, a law professor at University of California, Irvine predicted that if the case returns to the Supreme Court, it will rule 5-4 against the school's affirmative action program.

Fisher v. University of Texas has taken a circuitous route through the courts. First brought in 2008, it made its way up to the Supreme Court in 2013, and many observers had expected the five conservatives to smack down affirmative action. But in a surprise move, the justice punted, saying the Fifth Circuit wasn't fair to the challengers and must consider the case again. Now the Court says that "[w]ith the benefit of additional briefing, oral argument, and the ordered exacting scrutiny" it has reached the same conclusion.

"UT Austin has demonstrated a permissible goal of achieving the educational benefits of diversity within that university’s distinct mission, not seeking a percentage of minority students that reaches some arbitrary size," Judge Patrick E. Higginbotham wrote for the 2-1 majority.

So, what's next for the case?

The plaintiff, Abigail Noel Fischer, who says she was rejected by UT because she's white, has long since graduated from a different college. The stakes are much higher and reach the heart of racial preferences in admissions. The Project on Fair Representation, which is financing the challenge, promised further appeal. Experts expect the Supreme Court to have the final say.

"It is rare that the Supreme Court considers the same case twice. It usually only does so when several of its members believe that the lower court has thumbed its nose at the Supreme Court. But I think there is a good chance here that the required four Justices will think the Fifth Circuit has done that," said Brian Fitzpatrick, a professor at Vanderbilt University law school and former clerk for Justice Antonin Scalia.

"Remarkably, after Chief Justice Roberts specifically made this point at oral argument, the University and the Fifth Circuit have not said how many minority students the University needs to achieve the educational benefits of diversity it is purportedly seeking," he said. "As Judge Garza noted in dissent, if it doesn't tell us what its goal is, it is impossible for the University to prove that its use of race is necessary to achieve the goal. And if the University can’t prove that, the Supreme Court said it should lose."

The challengers have one of two options: they can request a full bench (known as an en banc) ruling at the Fifth Circuit. Or they can appeal directly to the Supreme Court, where four justices must agree to take the case in order for the Court to hear it. If the decision is reversed en banc, it is expected that the university will appeal to the Supreme Court.

UT's affirmative action program admits the top 10 percent of students in each high school graduating class. Given the racial makeup of schools across Texas, the policy is known to enhance admission of African-Americans and Latinos.

The five Republican-appointed justices have a demonstrated hostility to laws that give racial preferences aimed at rectifying discrimination against minorities, as evidenced in their Supreme Court rulings on school segregation, the Voting Rights Act and a separate affirmative action case this year. If it reaches the Supreme Court, one question on scholars' minds will be whether an adverse ruling would ax UT's policy narrowly or whether the justices would overturn the 2003 ruling, Grutter v. Bollinger, and smack down all affirmative action in public institutions.